NEHAWU strike appeal succeeds in part

Labour Appeal Court has harsh words for the union, the government and the police

By James Stent and Liezl Human

13 March 2023

Strikers burned tyres outside Laetitia Bam Day hospital in KwaNobuhle, Kariega last week. The Labour Appeal Court has ruled that except for some categories of workers, the strike can continue. Photo: Thamsanqa Mbovane

The Labour Appeal Court has ruled that members of the National Education Hospital and Allied Workers Union (NEHAWU) who do not perform essential work or work for certain agencies can continue their strike.

NEHAWU went to the court to appeal against the 6 March judgment and order of Judge André van Niekerk in the Labour Court which permitted the execution of an interdict granted by Labour Court Judge Edwin Tlhothlalemaje on 4 March.

A full bench of the Labour Appeal Court — Judge President Basheer Waglay, and Acting Judges Katharine Savage and Nyameko Gqamana — found that the government had not “established exceptional circumstances and irreparable harm”. They replaced Judge van Niekerk’s order with an order specifically excluding essential workers and staff of the Special Investigating Unit, the South African Social Security Agency and the South African National Botanical Institute from participation in NEHAWU’s strike. The three agencies are not covered by the bargaining council process.

The effect of the judgment is that apart from essential and excluded workers, NEHAWU members are permitted to strike, pending a decision on the appeal of Judge Tlhothlalemaje’s interdict, which is yet to be heard.

The Department of Public Service Administration (DPSA) had argued that the demands in NEHAWU’s strike notice were unlawful because, the “National Treasury has not and will not approve” the cost of the additional wage increase; the strike notice was “stale”, and because the financial year was soon to end - claims that the Labour Appeal Court found “difficult to understand”.

Read the judgment

“An employer’s claim that it will not accede to such demands or that it has not budgeted for or obtained the required approvals to accede to such demands does not necessarily make either the demands or the strike itself unlawful,” wrote the judges, adding that, “None of the contentions advanced for the Minister and DPSA provide exceptional circumstances which would warrant the entire strike being interdicted pending appeal.”

The Labour Appeal Court said that the government’s submissions indicate “an approach to collective bargaining in the public service which appears to fail to understand the inherent nature of the power play between the parties and the right of unions and employees to exercise collective power in support of workplace demands.”

Violence and intimidation condemned

The judges had harsh words for NEHAWU, which had issued a strike notice which was “intentionally broad and recklessly so”, and which “ illustrated a flagrant disregard for the law, the employer and the people of this country entitled to access essential public services”.

They condemned the incidents of violent and intimidatory conduct that have marred NEHAWU’s strike action. But they said these acts did not invalidate the right to strike, quoting the Constitutional Court in SATAWU vs Garvas, “[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.”

The judges were also highly critical of the South African Police Service (SAPS), calling its failure to act when confronted with criminal behaviour “extraordinary”. “It has become commonplace for the SAPS to walk away from scenes of criminal behaviour in a strike context, calling it a private or civil matter. Criminal conduct is neither private nor a civil matter.”

NEHAWU was ordered to inform its members and officials of the outcome of the appeal by 1pm Monday, “at the pain of being found guilty of contempt”.

Lwazi Nkolonzi, NEHAWU national spokesperson Lwazi Nkolonzi, said the union was meeting lawyers later this afternoon and would issue a statement.

A week of protests has rocked hospitals and clinics across the country, with some hospitals being closed down.

National health minister Joe Phaahla said on Monday that services were being resumed in Gauteng and hundreds of people were again being assisted. He thanked the medical staff who were working today.

Phaahla called on striking health workers to return to work and said that while they have a legitimate cause to want to improve their salaries, there is “nothing higher than people’s lives”.

The National Department of Health’s spokesperson said in a statement on Monday that it welcomes the court judgment ruling that the strike action by NEHAWU and its members is interdicted with immediate effect.

Commenting on the Labour Appeal Court judgment, Foster Mohale, spokesperson for the national health department, said: “We believe this judgment will bring some form of stability in health facilities across the country.”

He said that this was a victory for “innocent, vulnerable and non-unionised patients who have suffered the consequences of the disruptive and violent strike”.

In the Free State, hit hard by protests like Gauteng, hospitals were calmer on Monday, said spokesperson Mondli Mvambi. Western Cape health spokesperson Mark van der Heever said that no disruptions were reported at hospitals and clinics after protests last week.

Northern Cape spokesperson Lulu Mxekezo said that about four clinics in the Sol Plaatje local municipality were affected after personnel were intimidated and forced to leave work stations. At Kagiso health centre in the John Taolo Gaetsewe district, some staff were also intimidated, Mxekezo said. Mxekezo said that there were also instances of peaceful picketing outside health facilities, after which staff went back to their work stations.

Mpumalanga spokesperson Christopher Nobela said that hospitals were functional but still running on limited staff.